1604375 (Refugee)

[2016] AATA 4244

1604375 (Refugee) [2016] AATA 4244 (5 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1604375

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Josephine Kelly

DATE:5 August 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 05 August 2016 at 3:37pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant claims to be a citizen of Lebanon. He applied for the visa [in] November 2013 and the delegate refused to grant the visa [in] March 2014.

3. The applicant applied to this Tribunal which affirmed the decision under review. The applicant did not appear before the Tribunal.

4. The Federal Circuit Court remitted the matter for reconsideration by consent [in] March 2016 because the decision record revealed a probable error of law.

5. A registered migration agent represented the applicant.  On 23 May 2016 the Tribunal wrote to the applicant, advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 5 July 2016. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice.

6. On 29 June 2016, a case officer spoke to the applicant’s representative by telephone.  The representative said that she was awaiting instructions from the applicant and should be sending the hearing response form on that day.  The case officer rang the representative again on 1 July 2016.  The representative was out of the office on that day.  The case officer advised another person in the office that the Tribunal had not received a response to the hearing invitation.  The person said she would follow up the matter.

7. On 4 July 2016 at 3:28 pm, the Tribunal received an email from the representative who sought an adjournment of the hearing because the applicant is seeing a psychologist and requires support prior to attending the hearing. A response to the hearing invitation was included with the email which indicated that neither the applicant nor the adviser would attend the hearing on 5 July 2016. Two medical certificates were provided as well from the one doctor.  The first dated [June] 2016 advised that the applicant was suffering from [a medical condition] for about [number] years and on  [medication] and was referred to a [professional] for further management.  It stated “He needs assistance and consideration due to his medical condition”.  The second medical certificate was dated [July] 2016 and certified that the applicant “has a medical [condition] and will be unfit from 2 July 2016 to 8 July 2016 inclusive”.

8. On the same day, the Tribunal sent an email to the representative advising that the member had agreed to the request and would reschedule the hearing. On 5 July 2016 the Tribunal wrote to the applicant inviting him to a hearing on 22 July 2016. 

9. On 15 July 2016 the Tribunal sent out a letter rescheduling the hearing for 5 August 2016 because the member was not available to hear the matter on 22 July 2016. No response has been received.

10. The Tribunal sent an SMS hearing reminder to the applicant’s mobile number on 4/08/2016 11:00:36 AM.  

11. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    THE LAW

12. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

13. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

14. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

15. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

16. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF THE CLAIMS FOR PROTECTION AND THE EVIDENCE, AND FINDINGS

    The issue in this case

17. The issue in this case is whether the Tribunal is satisfied on the material before it that the applicant satisfies either the refugee or complementary protection criterion.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

18. The following findings are not contentious. 

19. The applicant was born in Lebanon on [date]. He is a citizen and national of Lebanon. He lived all his life in the village of [name], in Akkar, North Lebanon, until he came to Australia [in] April 2011 holding a Lebanese passport and an Australian student visa.  The visa was granted [in] March 2011 and was valid until [September] 2013.  The applicant returned to Lebanon from [December] 2012 until [January] 2013. He re-entered that country legally and returned to Lebanon with the full knowledge of the authorities in Lebanon.  He applied for a protection visa [in] September 2013 which was deemed to be invalid [in] November 2013.  He applied again [in] November 2013.

20. The applicant finished high school in July [year], and completed three vocational education courses from September 2005 until July 2009. He worked as an [occupation] from January 2007 to December 2009.  After that, he was unemployed, not studying, and supported by his family until he left to come to Australia to study. 

21. In Australia, the applicant attended [a] college from May 2011 to August 2011 and then attended another college from September 2011 to December 2012.

22. The following members of the applicant’s family live in Lebanon:  his parents[and siblings].

23. The applicant contacts his relatives by text messages, telephone calls and WHATSAPP. 

    The applicant’s claims for protection

24. The applicant made the following claims for protection in his visa application.

25. He fears Hezbollah. He has been tormented, threatened, had his belongings broken, and been pushed and shoved in his own home by Hezbollah members.  They have no rules. They interrogate, demand and force what they want.  He lived in fear the entire time he was in Lebanon and now lives fear in Australia that his family may be harmed because those violent Hezbollah members. 

26. He has a real fear that he will be forced to join Hezbollah to fight in the religious war in Syria.  He is Shiite.  He does not have the mentality of Hezbollah. He is not an extremist or terrorist.  He and his family have been strongly threatened that if he returns he will be forced to join Hezbollah, against his will. He does not wish to serve in any war in which he could be harmed or killed.

27. The applicant does not wish to place his family at risk of being tortured or killed because of his unwillingness to join this extremists group.  

28. When he returned to Lebanon in December 2012, he was approached by Hezbollah members at his family home because they were recruiting for the Syrian war. They were very aggressive and forceful.   He told them that he was no longer based in Lebanon.  He was hoping that would deter them but it only made them more determined and mad.  They accused him of being a Westerner, an American worshipper, and that if he did not prioritise his duties to God over living abroad, there would be grave consequences.

29. During the one month he was there, they returned [number] times, constantly approaching and preaching to him and his parents.  They broke possessions in his family home, and tormented the applicant and his siblings and said that his family would not rest until he was back in Lebanon and away from living the brain-washed life of the western world. 

30. Since he returned to Australia, his mother has informed Hezbollah that he is married and will not be returning to Lebanon. Since then, they have cut down the amount of times they approached his family and relatives.  Hezbollah are powerful and know when a person arrives in Lebanon and when they depart.  They have reduced their unwanted visits to his family because they know that he has not returned to Lebanon.

31. The applicant does not believe the authorities can protect him because political groups have more power and rule over the police and authorities.

32. The applicant also fears the Sunna community.  His family live in a predominantly Sunna area of Lebanon. If he returns, it would appear to the Sunna community that he has come back to fight in the war and they will kill him.

33. The applicant thinks that will happen because of the current horrific circumstances in Lebanon and Syria.  The unrest is escalating on a daily basis.  Sunna and Shiite are growing more and more desperate to recruit soldiers and members each day. There is a huge war brewing and neither side is backing down.

34. The authorities of the country cannot protect him because the political groups have more power and rule over the police and authorities.

35. During the Departmental interview [in] February 2014, the applicant also claimed that after the sectarian problems, whenever he tried to work, he was kicked out, hassled, and not given a position because he is Shia.  He also said that Hezbollah came to his house when he was not there.  They came once and he fled.  He explained that his house is at the beginning of the village and Hezbollah passed in front of the house [number] times but knocked on the door only once.   He said that he had never met someone from Hezbollah and explained that the people who had entered his house and pushed and shoved him were youths from a different village.  He did know whether they were Hezbollah.  The applicant provided a copy of the delegate’s decision record which usefully summarised what happened during the interview.  A copy of a recording of that interview is also before the Tribunal.

36. The Tribunal published its decision on 16 December 2014.  [In] March 2015, lawyers representing the applicant sent an urgent request that the Tribunal re-open the matter and included a statement from the applicant. In addition to some matters generally covered in his visa application, he claimed that his family in Lebanon, including his father, who was [occupation], and his [siblings] were suffering from poverty and that poverty was the main reason he had come to Australia, as well as there being a lack of medical care. His [sibling] got a government loan to assist him to come to Australia.

37. The applicant claimed that his giving different information to the department from that in the documents was because his migration agent had got him to sign them without understanding them.

38. Consideration and findings

39. The applicant’s claims are vague and lack detail despite his having the opportunity to expand upon them during the departmental interview. He has provided no supporting evidence or country information to support his claims.

40. He provides no information to support his claim that he fears the Sunna community because he will be seen as returning to fight in the Syrian war.  The Tribunal accepts that Sunni extremist groups exist in Lebanon, but accepts the assessment of the Department of Foreign Affairs and Trade in the Thematic Information Report Sectarian Violence in Lebanon of 18 December 2013 (the Thematic Report), that low profile, non-militarised Shias are not being targeted on the basis of their religious affiliation alone. The applicant had worked as [occupation][in] Akkar.  He came to Australia to study. The Tribunal does not accept that returning from Australia changes the applicant’s profile from that assessed by DFAT.   On the material before the Tribunal, it is not satisfied that he stopped working as [occupation] because of discrimination against him because he was Shia. 

41. The applicant has given inconsistent accounts of his encounter with Hezbollah in Lebanon in 2012. The Tribunal has taken into account his claim about the impact of the migration agent in relation to his written claims.  However, his evidence at the departmental interview does not support a claim that he has ever actually met someone from Hezbollah. The thematic report states that Hezbollah are concentrated in southern Lebanon, the southern suburbs of Beirut and in much of the Beka’a Valley and effectively controls security across most of those areas.  Despite its geographic concentration in Shia areas, it has the capacity to undertake targeted actions across Lebanon and has been accused or targeting high profile Sunni political leaders.  Multiple credible sources have told DFAT that despite its participation in fighting in Syria, it is reluctant to see sectarian fighting escalate within Lebanon because it would not wish to upset a balance of power already favourable to its own interest. 

42. The claim about the youths from a different village entering his house, and pushing and shoving him was vague.  He did not claim that they were Sunni and he did not know whether they were Hezbollah. It is not apparent how he knew that they were from a different village. 

43. The applicant comes from Akkar, which does not contain a concentration of Shia, as his own claims demonstrate. While the country information indicates that Hezbollah may target a high profile target there, the Tribunal does not accept that the applicant has such a profile. The applicant’s not having met someone from Hezbollah is consistent with the DFAT thematic report.  DFAT’s assessment is that Hezbollah relies predominantly on social pressure and persuasion rather than violence to address dissent in the Shia community.[1]  Other country information indicates that Hezbollah would rarely forcibly recruit someone.[2]  The Tribunal does not accept that Hezbollah has tried forcibly or threatened to recruit the applicant to fight in Syria or will in the future or that Hezbollah has approached any member of his family and relatives in relation to that purpose.  It does not accept that his mother has advised Hezbollah that he has married and will not be returning to Lebanon.

    [1] DFAT Country Information Report – Leanon 18 December 2015 at [3.49] (the Country Report)

    [2] Immigration and Refugee Board of Canada 2011 LBN103846.E Lebanon: Hezbollah, including areas of operation, political involvement, military activity, recruitment practices, mistreatment of citizens and state protection, 16 November – Accessed 12 March 2014

44. DFAT assesses that there is no evidence that Sunnis or other Lebanese are at risk from sectarian violence in Akkar.

45. The Tribunal does not accept that there is a real risk that the applicant will suffer serious harm or that there is a real risk that he will suffer significant harm from the Sunna community and/or from Hezbollah, if he returns to Lebanon from Australia because he is Shia and/or because he has returned from the west.

46. In making those findings, the Tribunal has taken into account his claim to have had suffered discrimination in relation to work because he is a Shia.  However, he has worked as [occupation] and the Tribunal does not accept that he stopped working because of discrimination against him as a Shia.  His claims are vague and generalised. 

47. For the above reasons, the Tribunal does not accept that the applicant will place his family at risk of being tortured or killed because of his unwillingness to join Hezbollah.

48. The applicant made a generalised claim in his November 2013 application that unrest is escalating and Sunni and Shia are growing more and more desperate to recruit soldiers and members each day and a huge war is brewing.  Fortunately for Lebanon, that war has not eventuated within its territory.

49. The Country Information Report at [2.38] stated that since the February 2014 Country Information Report on Lebanon and the Thematic Report, “incidents of violence influenced by long-standing sectarian tensions have decreased, ostensibly in response to successful interventions by the Lebanese authorities and cooperation between traditionally opposing actors (including Hezbollah)…. Security plans implemented in a number of locations by the Lebanese Armed Forces (LAF) and a formal dialogue between the Shi’a Hezbollah and Sunni-dominated Future Movement have contributed to a more stable security situation”.

50. The Country Report goes on to say that “this stability is being constantly tested by the conflict in neighbouring Syria, including through the large influx of Syrian refugees, and the presence in Lebanon of extremist groups, such as Daesh (ISIL) and al-Nusra, with an intent to perpetrate violence in Lebanon and agitate the pre-existing sectarian tensions within Lebanon. Overall, DFAT assesses that Daesh and al-Nusra currently have an increasing capacity and influence in Lebanon, and that civilians face a moderate risk of violence, depending on their location. For example, recent incidents of violence linked to Daesh or al-Nusra have targeted Alawite and Shi’a interests. DFAT assesses the potential for Daesh or al-Nusra to launch attacks in Sunni-dominated areas as unlikely.

51. The applicant lives in a Sunni-dominated area in Akkar. The Tribunal does not accept that there is a real chance that the applicant will suffer serious harm or a real risk that he will suffer significant harm from Daesh or al-Nusra if he returns to Lebanon.               

1. The Tribunal does not accept that his family have lived or are living below the poverty line, or that he has in the past or will if he returns to Lebanon.  He has provided no supporting evidence for that claim, including country information or statements from any of his family members.  He lived and worked in Lebanon before coming to Australia, although the Tribunal takes into account his claim that he could not live on his [pay]. He was able to finance his student visa, travel to Australia and studying for a year after his arrival.  The Tribunal takes into account his claim that his [sibling] was able to get a loan, but that is not consistent with the poverty the applicant claimed.

2. Further, the applicant made this claim in 2015 after the Tribunal hearing. He did not claim that poverty was for any of the Convention reasons. The Tribunal accepts that Akkar is poor and the applicant may be seeking better economic opportunities.   It does not accept that there is a real chance that he will suffer serious harm or that there is a real risk that he will suffer significant harm because of poverty if he returns to Lebanon.

3. For the above reasons, the Tribunal does not accept that there is a real chance that the applicant will suffer serious harm for a Convention reason if he returns to Lebanon.

4. It does not accept that he has a well-founded fear of persecution.

5. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

6. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

7. For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm.

8. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

9. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

10. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Josephine Kelly
    Senior Member